Cheyenne Arapaho Tribes of Oklahoma v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 5, 2009 Decided March 17, 2009

No. 07-5399

CHEYENNE ARAPAHO TRIBES OF OKLAHOMA,

APPELLANT

v.

UNITED STATES OF AMERICA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 06cv00519)

Richard J. Grellner argued the cause for appellant. With

him on the briefs was John P. Racin.

Mary Gabrielle Sprague, Attorney, U.S. Department of

Justice, argued the cause for federal appellees. With her on

the brief were James M. Upton, William Lazarus, and

Elizabeth A. Peterson, Attorneys. R. Craig Lawrence,

Assistant U.S. Attorney, entered an appearance.

Before: SENTELLE, Chief Judge, and ROGERS and

GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

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GRIFFITH, Circuit Judge: This appeal involves disputed

rights to land originally designated as part of a reservation for

the Cheyenne Arapaho Tribes of Oklahoma and later set apart

by executive order as a U.S. military installation. The district

court dismissed the Tribes’ action to quiet title to the land for

lack of subject matter jurisdiction. The Tribes argue that the

court erred in dismissing the case prematurely without

allowing for jurisdictional discovery. Because the Tribes fail

to specify what facts discovery could produce that would alter

the jurisdictional analysis, we hold that the district court did

not abuse its discretion in denying the Tribes’ discovery

request.

I.

The train of events from which this appeal arises was set

in motion nearly 140 years ago. In 1869, President Ulysses S.

Grant designated more than five million acres in north-central

Oklahoma as a reservation for the Cheyenne Arapaho Tribes

of Oklahoma. Exec. Order (Aug. 10, 1869), reprinted in 1

INDIAN AFFAIRS: LAWS AND TREATIES 841 (Charles J.

Kappler ed., 1904). In 1883, President Chester A. Arthur

carved out 9493 acres from within the reservation “for the

post of Fort Reno,” which was to be used “for military

purposes exclusively.” Exec. Order (July 17, 1883), reprinted

in 1 INDIAN AFFAIRS, supra, at 842–43. The Tribes claim this

stipulation gave them a reversionary interest that would vest if

the land was used for anything other than military purposes.

See Appellant’s Br. at 2.

After the cavalry abandoned Fort Reno in 1908, the

Army used the post as a remount service depot, breeding and

training horses and mules for military use. The Army’s use of

Fort Reno waned in the 1930s as motor vehicles began to

replace horses and mules as the predominant form of military

3

transportation. In 1937, Congress transferred 1000 acres of

Fort Reno land to the Department of Justice for use by the

Bureau of Prisons as a federal reformatory. Act of May 24,

1937, Pub. L. No. 75-103, 50 Stat. 200. In 1948, Congress

transferred the remaining 8493 acres to the Department of

Agriculture (USDA) for “livestock and agricultural”

purposes, Act of Apr. 21, 1948, Pub. L. No. 80-494, 62 Stat.

197, and the following year USDA began a cooperative

research program at Fort Reno studying the selective breeding

of beef cattle and swine. Pursuant to an agreement with

USDA, the Army continued to use approximately 600 acres at

Fort Reno until 1954 to raise and train horses for the Turkish

army. See J.A. at 55.

The Tribes allege that the acreage transferred to USDA

in 1948 was placed on military “standby status” as part of a

classified agreement with the Army in 1954. Appellant’s

Reply Br. at 5. The government disputes the confidential

nature of this arrangement, noting that several newspaper

articles from 1954 reported that the Army asked USDA to

keep the buildings and pasture acreage previously used for the

Turkish aid program ready for possible needs in connection

with the “Indo China crisis.” See, e.g., Army Asks for

Retention of Fort Reno by Government for Possible Military

Need, EL RENO AM., May 20, 1954.

In 1890, the Tribes entered a Cession Agreement, ratified

by Congress the next year, in which they agreed to relinquish

their interest in the reservation, subject to the allotment of

160-acre tracts to individual members of the Tribes. By the

terms of the agreement, the Tribes agreed to “cede, convey,

transfer, relinquish, and surrender forever and absolutely,

without any reservation whatever, express or implied, all their

claim, title and interest, of every kind and character, in and

to” specified lands, as well as to “all other lands or tracts of

4

country in the Indian territory to which they have or may have

set up or allege any right, title, interest or claim whatsoever.”

Cession Agreement, art. II, 26 Stat. 989, 1022–23 (1891). The

agreement made no mention of any reversionary interest the

Tribes might have in the Fort Reno land.

In 1958, the Tribes filed suit with the Indian Claims

Commission (ICC),1 arguing they had received an

unconscionably small consideration for the cession of

reservation lands, asserting a claim to the reasonable value of

the 9493 acres of Fort Reno, and seeking “reasonable and fair

damages for the failure of the Secretary of the Interior to

require the return of said lands to the use and benefit of [the

Tribes].” J.A. at 264–65. The claims went to trial in 1965, but

the Tribes settled for $15 million before the ICC could render

a decision. See Cheyenne-Arapaho Tribes v. United States, 16

Ind. Cl. Comm. 162 (1965). The settlement agreement

contained several finality clauses, including one that read:

“Entry of final judgment in said amount shall finally dispose

of all rights, claims or demands which the petitioner has

asserted or could have asserted with respect to the subject

matter of these claims.” Id. at 171–72 (quoting Stipulation for

Entry of Final Judgment).

In 2006, the Tribes brought suit in district court to quiet

title to the Fort Reno land, claiming the property was outside

the scope of the 1891 Cession Agreement and that they held a

reversionary interest, which vested when the land ceased to be

used exclusively for military purposes. The United States

1

Congress established the ICC in 1946 as a quasi-judicial body

with authority to determine the merits of all Indian claims against

the United States that accrued prior to its establishment. See Act of

Aug. 13, 1946, Pub. L. No. 79-726, 60 Stat. 1049. The ICC had

only a temporary mandate and was abolished in 1978. See Act of

Oct. 8, 1976, Pub. L. No. 94-465, 90 Stat. 1990.

5

moved to dismiss for lack of subject matter jurisdiction on the

ground that the Tribes’ claim was barred by the twelve-year

statute of limitations in the Quiet Title Act, 28 U.S.C.

§ 2409a(g) (2000). The United States moved, in the

alternative, for summary judgment on its affirmative defense

that the 1965 settlement of the Tribes’ ICC suit precludes a

later quiet title action. The Tribes subsequently filed a motion

under Federal Rule of Civil Procedure 56(f), arguing that the

district court should not decide the statute of limitations issue

without first permitting discovery regarding the date on which

military use of Fort Reno ended and the Tribes’ alleged claim

to beneficial title accrued.

The district court denied the Tribes’ Rule 56(f) motion,

concluding that they failed to “show that additional discovery

would be beneficial to . . . establishment of jurisdiction.”

Cheyenne-Arapaho Tribes v. United States, 517 F. Supp. 2d

365, 374 (D.D.C. 2007) (quoting Med. Solutions, Inc. v. C

Change Surgical LLC, 468 F. Supp. 2d 130, 135–36 (D.D.C.

2006)). The court granted the government’s motion to

dismiss, identifying several points in time—each more than

twelve years prior to the suit—at which the Tribes “should

have been reasonably aware” that the United States had taken

action adverse to their alleged reversionary interest in the Fort

Reno land. Id. at 371. In a footnote the Court accepted the

government’s alternative argument that the Tribes lost the

right to assert their claim under the terms of the 1965

settlement of their ICC suit. Id. at 372 n.3.2

2

The Tribes moved to alter or amend this portion of the judgment

pursuant to Federal Rule of Civil Procedure 59(e), arguing that the

ICC lacked jurisdiction over their claims and that the record

showed the land set aside for Fort Reno was not subject to the ICC

settlement. The district court denied the motion. Cheyenne-Arapaho

Tribes v. United States, No. 06-0519 (D.D.C. Nov. 8, 2007).

6

This appeal followed. The Tribes argue that the district

court erred in denying their request for discovery to identify

continuing military activity at Fort Reno and in concluding

that the settlement of their ICC suit precludes the present

quiet title action. We have jurisdiction under 28 U.S.C.

§ 1291 and review the district court’s denial of the Tribes’

discovery request for abuse of discretion. See FC Inv. Group

LC v. IFX Markets, Ltd., 529 F.3d 1087, 1091 (D.C. Cir.

2008). Because we conclude that the district court did not

abuse its discretion in denying jurisdictional discovery and

that it properly dismissed the case for lack of subject matter

jurisdiction, we need not consider the Tribes’ arguments

about the ICC settlement agreement.

II.

A.

The Quiet Title Act, 28 U.S.C. § 2409a, which waives

the United States’ sovereign immunity for certain quiet title

actions, is the “exclusive means by which adverse claimants

[may] challenge the United States’ title to real property.”

Warren v. United States, 234 F.3d 1331, 1335 (D.C. Cir.

2000) (alteration in original) (quoting Block v. North Dakota,

461 U.S. 273, 286 (1983)). Of dispositive relevance here, the

Act provides that “[a]ny civil action under this

section . . . shall be barred unless it is commenced within

twelve years of the date upon which it accrued,” 28 U.S.C.

§ 2409a(g). An action accrues “on the date the plaintiff or his

predecessor in interest knew or should have known of the

claim of the United States.” Id. We apply a “test of

reasonableness” to determine whether a plaintiff “knew or

should have known” of a federal claim to real property. D.C.

Transit Sys., Inc. v. United States, 717 F.2d 1438, 1441 (D.C.

Cir. 1983). “Knowledge of the claim’s full contours is not

7

required. All that is necessary is a reasonable awareness that

the Government claims some interest adverse to the

plaintiff’s.” Warren, 234 F.3d at 1335 (quoting Knapp v.

United States, 636 F.2d 279, 283 (10th Cir. 1980)).

The Tribes contend that the Act’s statute of limitations

begins to run only when their reversionary interest in the land

is triggered, which, according to their theory of the case,

occurs when the government ceases to use Fort Reno

exclusively for military purposes. The Tribes do not challenge

directly the district court’s finding that, on the record before

it, they knew or should have known more than twelve years

prior to their suit that the United States claimed the right to

use Fort Reno land without limitation. Instead, the Tribes

argue that the district court abused its discretion by refusing to

allow jurisdictional discovery, which “could well show

continuing military status in the lands of Fort Reno, such that

the Tribes’ claimed reversionary interest may not yet have

accrued.” Appellant’s Br. at 17. The Tribes requested a

continuance to pursue discovery under Federal Rule of Civil

Procedure 56(f), which provides that a district court may

allow for discovery if a party opposing summary judgment

“shows by affidavit that, for specified reasons, it cannot

present facts essential to justify its opposition.”3 The Tribes’

supporting affidavit identifies recently declassified documents

that suggest “the Army fully intended to make continued use

of the lands for military purposes,” and asserts that further

discovery could undermine “the Government’s argument the

Tribe has long been on notice of all the facts relating to their

claimed reversionary interest in Fort Reno.” J.A. at 356.

3

Although Rule 56(f) formally applies only in the context of a

motion for summary judgment, its discovery standards are also

appropriate for parties responding to a Rule 12(b)(1) motion to

dismiss. See Gordon v. Nat’l Youth Work Alliance, 675 F.2d 356,

360 (D.C. Cir. 1982).

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We hold that the district court did not abuse its discretion

in denying jurisdictional discovery given the absence of any

specific indication from the Tribes regarding “what facts

additional discovery could produce that would affect [the

court’s] jurisdictional analysis,” Mwani v. bin Laden, 417

F.3d 1, 17 (D.C. Cir. 2005) (quoting Goodman Holdings v.

Rafidain Bank, 26 F.3d 1143, 1147 (D.C. Cir. 1994)). The

Tribes failed to specify how the requested discovery would

alter the court’s determination that the statute of limitations

had long since run and extinguished their claim. See Byrd v.

EPA, 174 F.3d 239, 248 n.8 (D.C. Cir. 1999) (noting that

conclusory assertions about the potential value of discovery

are insufficient unless supported by specific discoverable

facts). The Tribes sought discovery to bring to light any

“continuing military uses” on the Fort Reno land. J.A. at 357.

But the Tribes “knew or should have known,” 28 U.S.C.

§ 2409a(g), that the United States had used the land for

nonmilitary purposes from actions taken by Congress in 1937

and 1948 that transferred sections of Fort Reno from the

Department of War to the Departments of Justice and

Agriculture. These transfers put the Tribes on notice that the

government continued to claim the land even though it was no

longer being used for “military purposes exclusively,” in

direct conflict with the Tribes’ alleged reversionary interest

under the 1883 executive order. See Warren, 234 F.3d at 1336

(finding notice of the government’s claim to real property

when the President issued a proclamation declaring an island

reserved for certain uses inconsistent with private

ownership).4 At either of those points in time, the Tribes

4

Moreover, the Tribes’ 1961 Severed Petition to the Indian Claims

Commission, in which they asked the ICC to “set[] aside the

jurisdiction of the Department of Agriculture conferred by the Act

of April 21, 1948,” J.A. at 70, shows that the Tribes had actual

knowledge of the 1948 transfer of Fort Reno land to USDA.

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should have known of the government’s adverse claim, and

the statute of limitations began to run. Any additional

information or documentation regarding partial military uses,

or suggestion that the land might be used for future military

purposes, would not change the court’s jurisdictional analysis.

The Tribes seek to avoid the force of the Quiet Title

Act’s statute of limitations on the slender reed that their

alleged reversionary interest in the land accrues only when

Fort Reno is used for something other than military purposes.

Putting aside any doubts about whether they in fact possess

such a reversionary interest, even by its own terms the Tribes’

statute of limitations argument fails because the United States

long ago abandoned exclusive military use of the land. The

statute of limitation for the Tribes’ claims, if they had any,

began to run as soon as the government used Fort Reno for

something other than a military purpose. More than twelve

years have since elapsed and the Tribes’ quiet title action is

therefore time-barred.

B.

The Tribes also suggest, albeit in a footnote, that even if

their original quiet title action accrued no later than when

Congress transferred jurisdiction over Fort Reno to the

Departments of Justice and Agriculture, discovery might

show that the United States later abandoned its adverse claim

by once again devoting Fort Reno to military uses. See

Appellant’s Br. at 17 n.7. In such circumstances, according to

the Tribes, a new limitations period would begin to run if and

when the government subsequently reasserted a claim adverse

to the Tribes’ reversionary interest. In support of this theory,

the Tribes cite Shultz v. Department of Army, 886 F.2d

1157 (9th Cir. 1989), in which the Ninth Circuit held that “[i]f

the government has apparently abandoned any claim it once

10

asserted, and then it reasserts a claim, the later assertion is a

new claim and the statute of limitations for an action based on

that claim accrues when it is asserted,” id. at 1161. The Shultz

court suggested that if, after physically restricting access to a

roadway running through part of a military installation, the

Army thereafter failed for several years to restrict access,

members of the public who used the road during that time

might reasonably “believe that the government did not

continue to claim an interest in the roadway.” Id. Subsequent

efforts to restrict access would constitute a new claim for

which a fresh statute of limitations period would only then

begin to run. Id.

The Tribes fail to mention that the Ninth Circuit later

limited its abandonment-and-new-claim holding to “claim[s]

of an easement,” concluding that “a reasonable plaintiff could

not believe that the United States had abandoned its claim of a

possessory interest in public lands merely because it failed to

enforce restrictions upon public access,” Kingman Reef Atoll

Invs., LLC v. United States, 541 F.3d 1189, 1199 (9th Cir.

2008) (“It is well established that the United States does not

abandon its claims to property by inaction.”). The Eighth

Circuit has likewise concluded that the United States does not

abandon a claim to property for purposes of § 2409a(g) unless

it “clearly and unequivocally abandons its interest” through

some official action. Spirit Lake Tribe v. North Dakota, 262

F.3d 732, 739 (8th Cir. 2001). This standard is supported by

the Quiet Title Act itself, which established a method for the

United States to disclaim its interest in real property by filing

a formal disclaimer with the court. See 28 U.S.C. § 2409a(e).

The Tribes’ assertion that further discovery might show

express abandonment of the government’s claims to Fort

Reno is unavailing because the materials the Tribes seek

would not demonstrate abandonment of the United States’

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interest in the land. The only document to which the Tribes’

discovery affidavit specifically refers is a transcript of 1954

hearings conducted by two congressmen in El Reno,

Oklahoma. The Tribes suggest the transcript might show that

the congressmen either made representations contrary to the

United States’ continuing adverse interest in the property or

“obscured the actual nature and status of the Fort Reno

lands.” J.A. at 357. But nothing said by government

representatives during such hearings, which were open to

tribal members and the subject of several newspaper reports,

could undermine the official actions taken by Congress in

1937 and 1948 demonstrating the United States’ property

interest in Fort Reno. See Kingman Reef, 541 F.3d at 1200

(holding that one may not reasonably decide whether the

United States has abandoned a claim to property on the basis

of informal remarks of government officials); cf. Warren, 234

F.3d at 1338 (noting that in many circumstances “the

Government cannot abandon property without congressional

authorization”).5

The United States asserted claims to Fort Reno that were

adverse to the Tribes’ alleged reversionary interest in the land

by acts of Congress transferring parts of the property to

5

Similarly, the type of internal agency documents upon which the

Tribes rely, see, e.g., Appellant’s Reply Br. at 4–6, are insufficient

to indicate abandonment of government claims of interest in

property. See Kingman Reef, 541 F.3d at 1200 (“[W]here the

United States’s claim of interest in property stems from formal

actions of the legislative or executive branch, a person could not

reasonably conclude that . . . internal agency memoranda could

eliminate the cloud upon the property’s title.”); Spirit Lake Tribe,

262 F.3d at 740–42 (holding that an internal memorandum authored

by an Associate Solicitor in the Department of Interior could not

establish abandonment of property because “intra-office

memoranda do not bind the government”).

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nonmilitary entities and uses. The Tribes fail to show that

jurisdictional discovery would (or could) uncover specific

evidence of official abandonment unavailable through other

means. The district court thus was well within its discretion to

deny the Tribes’ discovery request.

III.

We affirm the district court’s denial of the Tribes’

motion for a continuance to permit discovery. Because the

district court correctly determined that it lacked subject matter

jurisdiction over the Tribes’ claims, we do not reach the

court’s alternative conclusion that the 1965 settlement of the

Tribes’ ICC suit also bars their present action.

So ordered.